P:.uU.N II. IlLATEB.
BEAMAN tl. SLATEB.
(CCrcuU Court, So D. New York. January l!I'I, 18l11.)
Ool"l!'l'lnt·CL.Ulf-WHEN MAUITAIlII'ABL_TORT AND
When an action, brought under the New York Code, sounds partly la eo!I.tracl aBo' partly in tort, a counter-claim may be maintained for a balance due under the contract, and the fact that the evidence is direoted mainly to proof of the iort does not depnn the defendant of the benefit of the counter-olaim. ' In this action by a cbarterer for damages caused by tbe breacb ofa obarter-party, in that tbe vessel was delayed by the defective condition of her machinery and the negligence of the engineer, the charterer was entitled to recover extra expenses an!! probable profits lost by tne delay, and the' owner may set off against this sum .. unpaid balance due,for tbeuse of the vessel. AS OW:Nl!lts: Where, one member of a partnership which owns a vessel is alone sued for t.he breach of a charter-party, he may counter-claim for t.he entire balance due 'llllder \he contract for the use of the vessel. Hr>pk£ns v. Lane, 87 N. Y. 601, distinguished.
.. 1!I1IIPPIIII()--BRIUClI OJ' ClIARTBB-PARTY-COUIIITER,CLAIM.
At Law. Action by Samuel H. Seaman against John W. Slater for damages for breach of a charter-party. For former report, see 18 Fed. Rep. 485. Now heard on motion for a. new trial. Granted. John.E. Pars0n8, for plaintiff. Franklin Bartlett and Wm. G. Willson, for defendant. SHU'MAN, District Judge. This is a motion by the plaintiff for 11 new trial upon the ground oferrors in the charge of the court,and that the diet of the jury was against the evidence in the cause. This action was brought to recover damages which the plaintiff, as surviving partner-of Cromwell &00. , who were charterers ofthe steamer Hagar, had sustained; either by the breach of the charter-party, arising from the unfit condition of the ,boiler, or by the negligence of the engineer, whereby the vessel was injured, the voyage was delayed, e:l(tra expenses were caused to the char;. terers, and consequential damages were caused by their inability. in conl. sequence of said delay, to, obtain a return cargo, which had been agreed to be furnislJed, and which was not furnished by reason of the rival ofthe vessel. The plaintiff also claimed to recover, and this claim was not denied upon the trial before me, $1,734.10, and the interest thereon j that principal sum being the amount paid by the plaintiff's firm for the vessel's share of general average. The charter-party provided that the owners were to receive $7,000 for the use of the vessel, and for each day's detention above seven days, through the fault of the charterers, the sum of $250 per day; 83,000 of the $7,000 was paid. The defendant's answer contained a counter-claim for $4,000, and 81,250 for five days' detention in New Orleans. The substantial question of fact for the jury was the amount, if any, of consequential damages arising from the loss of return freight. The jury reported tha.t they could not agree upon this point, but were urged by the court to come to an agreement, and returned a verdict from which it appeared tha.t they fouud 'the
vol. 49. sum of$l,787 .20 as principal for loss of freight money upon the return voyage. The plaintiff's motion for a new trial, upon the ground of verdict against isbas.ed upop. the allegedpalpabia of the testimony in regard to consequential damages. I am fully aware of the importanee of trial by jury under the federal system, of the weight which ispl'operlyattached to a finding by the jury, and that mere dissatisfaeon the part of the court with the verdict does not justify the granting of a new trial. I am also aware that the question is not free from uncertainties, one of which arises from the length of time which hae elapsed since the transaction. But 1 am convinced that justice requires that a neW' trial should be had. There are occasional mishaps which are incident to the system of trial by j ilry. When one of those mishaps occurs, the stability of the system, and a due regard to its importance and dignity, require that the case should be submitted for renewed, thoughtful, and unprejudiced consideration. With such consideration, whatever the conclusion, the court will be content. The next ground for a new trial relates to exceptions to the charge of the court. This case has been tried twice in this court. Upon the first trial Judge WALLACE was of opinion that there was not evidence sufficient to justify a recovery by the plaintiff for the loss of the prospective profits of the return trip, and held that the plaintiff's recovery must be limited to the extra expenses incurred by reason of the detention and delay. The plaintiff thereupon elected to abandon the cause of action arising. from breach of contract, and put his case to the jury upon the question of negligence. Upon the plaintiff's motion for new trial, the court was of opinion t,hat the question of the loss of prospective profits should have been submitted to the jury,and directed a new trial. Upon the second trial there was no election to withdraw or abandon the cause of action founded upon contract. The case stood as presented in the complaint, wherein a double cause of action was alleged. No demurrer was pleaded, and the defendant interposed his counter-claim for the unpaid. charter money, and an allowance for detention, which was proper, inasmuch as the action did not .sound wholly in tort. If the action had been purely in tort, the construction of the New York statute is that "a counter-claim founded upon contract could not properly here have been allowed." People v. Dennison, 84 N. Y. 272; SmUhv. Hall, 67 N. Y. 48. It is not claimed that in an action for breach of contract, which is in affirmance of the contract, the unpaid amount due to the defendant may not be the subject of a counter--claim, but it is said that this action was, in substance, in tort. It is true that the testimony showed that the injury to the vessel happened through the negligenoe of the engineer; but it cannotbe that the defendant's right to a counter-claim, which exists upon the.pleadings, Can be taken away by the manner in which the case is presented in the testimony. The plaintiff, upon the trial, acquiesced that if he were to be allowed to recover, as one item of his damages, his prospective profits, it would be necessary that in fb.ing their probable amount the jury should be al-
SEAMAN f1. SLATEB.
lowed to offset the probable gross receipts the probable gross expenses, viz., the unpaid charternloney, and possibly some allowance for detention, but he objects to the charge that the sum of $4,000 llnd interest thereon were to be deducted from the total amount of damages and the $1,734.10 and interest thereon. In the majority of casea the plaintiff sues for the unpaid contract price, and the question of damages for breach of contract is presented by the defendant in defense, but the parties need not necessarily be arranged in this way. .Warfield v. Bootlt, 33 Md. 63. When the damages to which a person has been subjected by the inability of the contractor to comply with his warranty or his contract are believed to be in excess of the money due on .the face of the contract, the inj1ued party can stop paying, and sue for the breach of contract. Moultcm v. MeOwen, 103 Mass. 587, 594. And in such case the defendant can show, by set-off or by counter-claim, the unpaid value of his services or work. The object of the statutory system of set-off or counter-claim is to avoid circuity ofactioD; but the prinoiples upon which the result is reached, whether in favor of the plaintiff or defendant, do not differ materially from those which were recognized when each cont.-acting party brought his action. In MasEtachusetts the two cross-actions were wont to be tried together; and when there were two such actions, "one for the price of property sold, and the other for fraud in the vendor," it was held that the proper conrse was for the jury, "if they find the fraud, and that the damages equaled or exceeded the purchase money," to "render a verdict for the defendant in the first action, and for the plaintiff in the second action, for the excess of such damages, if any, over the purchase money. If the damage is less than the price sued for, it should go in reduction of the price in the first action, and the verdict should be for the defendant in the second action." Cook v. Castner, 9 Cush. 266. The rule was the same when the alleged damages were for defective work. Moulton v. MeOwen, 103 Mass. 590. Where the plaintiff sues for damages srilling fron:l breach of the contract, and the defendant has not been paid the contract price, and, by the verdict, the plaintiff has been compensated for the damages arising from the breach of the contract, it is proper that the defendant should be allowed the unpaidvalu.e of his services or work, and, in Qetermining the amount due to the contractor,the contract is to be followed so far as may be, (DermoU v. J(YfIe8, 2 Wall. 1;) and, "so far as the work was done under the contract. the prices specified in it are, as a general rule, to be taken as the best evidence of the value of the work," (Koon v. Greenman, 7 Wend. 121.) In this case the jury were instructed to find and allow the plaintiff his extra expenses resulting from the delay, and his prospective profits and the money paid for the benefit of the vessel; in other words, to place theplaintiffin the position in which he would have been had no calamity happened, and had his voyage been a prosperous one. When this bad been done, the amount which was due to the defendant for the use of the vessel, according to the charter-party, which, in this case, was the trUe measure of the defendant's demand, was properly deducted
The cases 'cited 8Upra support the charge; Warfield·v. Booth, ,33 Md. 63. . The plaintiff says that the sums named in the counter-claim did not belong to the defendant, but to a.ll the owners of the Hagar, and that the defendant alone. could not set up a counter-claim. When one of the owners or partners is sued for the entire amount of damages, resulting fromilie breach of the charter-party, and is to be compelled to pay the entire sum, I. think that he can set off the amount due upon the charterparty. If he could not, great injustice might be done. The case of HlYpldns v".,Lane, 87 N;;Y. 501, which was cited by the plaintiff, rests 'pOll a. different state of facts. A new trial is granted. .
from the sum due'to th.,··plailltiff.
CITY OF NEW ORJ,EANS ". STEWART.
(CirCUit Court of L
JdAlmAA!UI! TO JdUNICIPAL BOARD-RillS ADJUDIOATA.
December '1', 189L)
On an application for a writ of mandamus to compel the city of New Orleans to pay a judgment regularly obtained against it, such judgment is conclusive as to the city's liability, and no defense can be made on ti}e ground that the debt was.not paid out of the revenues of the year fol' whicli i.t was contracted, in accordance with Acts La. 1877, (Ex. Sess.) No. 80, p. 47, prOViding that no municipal corporS" tipn· shall expen,d .I\;ny money in any in excess of the actual revenue for that year, and that the revenue for each year shall be devoted to the expenditures . thereof·. U. S. v. New Orleans,98 U. S. 895, followed. OP COUNClr,-,TuATION, 1'ht; leldslature having declared that a 10-mill tax is sufficient to proVide for the city's uiibonded expenditures, it is not within the discretion of the council to exhaust' entire revenue witl1: one class of dis.bursements, and leave others to accumulate; and a writ of mandamus will issue to compel it to pay a valid judgmeut against the city, either out of surplus revenues for the current year, or, if there is noa,vAilablesur,pI\18, to include it in ,the budget for the ensuing year· A cHum that the' city is not bound to pay the' judgment out of the revenues for the cUrfllnt because the ",hole thereof was ,necessary for ordinary expenses, is merit when it apPears that $20,000 of such revenues was expended for a, drainage 'niacliine, which is a permanent improvement, and that the surplQS was over $:l50,QOO, a large portion of, Which remained unexpende,d. '. . .
REMEDY. , . .... ....,
The fact that other judgments besides the rlliator's have been recorded under the act of 1877 does not reqUire that' the writ of mandamus applied for by him shall direct aU the judgments to be paid in their proper order, since th.e court will not undertake ,to enforce the rights of persons who do not invoke i);8 .aid.
Error to the Circuit Court for the Eastern District of Louisiana. firmed.
BY LOCKE, DISTRICT JUDGE.
This was. ap,etition by C. H. Stewart, the relator, filed December 81, 1890, in,the. circuit court of the UI:lited States for the district of Louforo,:writ of mandamus to coil1pel the mayor and council of the city of Ne'f,Orleans to put upon the budget, and appropriate money for tpe judgment for $2,484.92. which had been recovered